TOP SECRET
Date: 20240322
Docket: DES-14-22
Citation: 2024 FC 456
Ottawa, Ontario, March 22, 2024
PRESENT: The Honourable Madam Justice Kane
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BETWEEN: |
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JAMAL TAAN BORHOT |
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Applicant |
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and |
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ATTORNEY GENERAL OF CANADA
Respondent/ Moving Party
and
DIRECTOR OF PUBLIC PROSECUTIONS |
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Respondent |
CONFIDENTIAL ORDER AND REASONS
[1] The Attorney General of Canada [AGC] brings this motion pursuant to Rule 399(2)(a) of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules] seeking to set aside (in part) the Court’s Order dated December 20, 2023 (2023 FC 1729) [the Order].
[2] The Order at issue granted the AGC’s motion to strike a Notice of Constitutional Question [NCQ] brought by the amicus curiae [amicus] appointed to assist the Court in the determination of the application by Mr. Jamal Borhot [Mr. Borhot] pursuant to section 18.1 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23 [the CSIS Act] and in the determination of the AGC’s application pursuant to section 38 of the Canada Evidence Act, RSC 1985, c C-5 [the CEA]. The Order provides the background up to December 20, 2023, which will not be repeated here.
[3] The Court agreed that the amicus could not bring a NCQ that is not attached to an underlying application. As noted in the Court’s reasons, Mr. Borhot made two applications pursuant to section 18.1 of the CSIS Act [the Section 18.1 Applications], the second of which was filed on September 6, 2023 and remains to be determined, but did not raise the NCQ in the context of his application. Counsel for Mr. Borhot were aware of the NCQ and advised the Court that they were not opposed to the amicus’ initiative to raise the NCQ; however, they clearly stated that they would not amend the second Section 18.1 Application or adopt the NCQ as their own. They noted, as in subsequent communications, that because they were not privy to the privileged information, they could not take a position. The Court notes that this is the reality and the requirement of section 18.1 proceedings; human source privilege, once asserted, must be respected.
[4] While the Court granted the AGC’s motion to strike, the Court accepted the alternative proposal of the amicus and raised the same issues on its own.
[5] The Order states at para 41:
[41] The Court finds that the issues raised by the amicus—which relate to how section 18.1 applies in the circumstances of the criminal prosecution against Mr. Borhot—cannot be ignored by this Court. The Court, therefore, requests that the amicus and the AGC make submissions to the Court regarding the constitutionality of section 18.1 of the CSIS Act as it applies to the circumstances that arise on Mr. Borhot’s Second Section 18.1 Application.
I. Rule 399(2)(a)
[6] Rule 399(2)(a) of the Federal Courts Rules states:
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Setting aside or variance
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Annulation
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399 (2) On motion, the Court may set aside or vary an order
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399 (2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l’un ou l’autre des cas suivants :
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(a) by reason of a matter that arose or was discovered subsequent to the making of the order…
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a) des faits nouveaux sont survenus ou ont été découverts après que l’ordonnance a été rendue…
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[7] The jurisprudence has elaborated on the application of the Rule.
[8] In Huang v Canada (Attorney General), 2019 FC 1122, Justice Mosley stated at para 49:
[49] To grant a motion to set aside or vary an order under Rule 399(2)(a) by reason of a matter that arose or was discovered subsequent to the making of the order, three conditions must be fulfilled: (1) the new information must be a “matter” within the Rule’s meaning; (2) the “matter” must not have been discoverable before the making of the Order; and (3) the “matter” must have a determining influence on the decision: Ayangma v Canada, 2003 FCA 382 at para 3.
[9] At para 50, Justice Mosley noted that the term “matter”
has a broad meaning but “must be relevant to the facts giving rise to the original order”
and that jurisprudence does not constitute a new matter (citations omitted).
[10] Justice Mosley explained at para 51:
[51] The authority to reconsider is an exceptional power: Saywack v Canada (Minister of Employment and Immigration), [1986] 3 FC 189, 27 DLR (4th) 617 (FCA); Watson v Canada (Royal Canadian Mounted Police), 2002 FCT 610 (FC). Rule 399 cannot be used as a vehicle for revisiting judgments every time a change in the facts occurs: Zeneca Pharma Inc v Canada (Minister of National Health & Welfare) (2000), 196 DLR (4th) 299, 10 CPR (4th) 146 (FCA). The policy of the law strongly favours finality of court orders to ensure the judicial process’ integrity: Nu-Pharm Inc v Canada (Attorney General) (1999), [2000] 1 FC 463, 179 DLR (4th) 531 (CA).
[11] In Alsaloussi v Canada (Attorney General), 2021 FC 168, Justice Gascon noted the rationale for the rule at para 11:
[11] The general principle is that judicial decisions are final. This is “necessary to ensure certainty in the judicial process as well as to preserve the integrity of that process” (Collins v Canada, 2011 FCA 171 [Collins] at para 12).
[12] Justice Gascon explained that Rule 399 is an exception to the general rule that upon issuing a final order or judgment the judge is functus officio, meaning that the judge cannot revisit the order or judgment, noting at para 12 that “[t]he principle of
functus officio ensures the finality of orders or judgments, and provides that the Court cannot reconsider or alter its decisions once they have been rendered”
. Justice Gascon added at para 15:
[15] Since preserving the certainty and integrity of the judicial process is a necessity, a motion to set aside or vary an order under Rule 399 (2)(a) must be based on “exceptionally serious and compelling grounds” (Collins at para 12). The remedy is extraordinary and will only be granted “in the clearest of cases” (P&G at para 26).
II. The AGC’s Submissions
[13] The AGC submits that the various events and responses from Counsel for Mr. Borhot following the Court’s December 20, 2023 Order constitute new matters that would have had a determining influence on the Court’s Order.
[14] The AGC points to correspondence from Counsel for Mr. Borhot on February 12, 2024, in response to the Court’s request that he advise of any concerns regarding the impact of the Order on the progress of his trial, to which Counsel stated, “to the extent that the Court is inviting Mr. Borhot to effectively choose between his right to make full answer and defence and his right to a trial within a reasonable time, Mr. Borhot declines to do so”
. The AGC also points to Mr. Borhot’s February 14, 2024 application to the Alberta Court of King’s Bench for a stay of proceedings pursuant to section 11(b) of the Charter [Section 11(b) Application] alleging unreasonable delay, which signals that delay is indeed a concern and that Mr. Borhot’s priority is a trial within a reasonable time and that the trial should not be delayed further.
[15] The AGC notes that the Court’s December 20, 2023 Order was made on the Court’s assumption that because Counsel for Mr. Borhot did not oppose the NCQ filed by the amicus, they would not oppose the Court raising similar questions on its own motion. The AGC submits that in subsequent communications, including the February 12, 2024 email, Counsel for Mr. Borhot refused to take a clear position regarding the impact of possible delay and called on this Court to protect both Mr. Borhot’s right to a fair trial and right to a trial within a reasonable time. The AGC submits that the filing of the Section 11(b) Application reflects Mr. Borhot’s clear choice to favour trial within a reasonable time and clearly signals that he does not support the constitutional challenge proceeding, except if that were to prolong the criminal proceedings and further support his Section 11(b) Application.
[16] The AGC also points to previous correspondence and submissions by Counsel for Mr. Borhot that conveyed an equivocal position regarding the constitutional question posed, including to the amicus’ NCQ. The AGC submits that it is now clear that Mr. Borhot is not supportive of the Court’s exploration of the constitutional issues.
[17] The AGC submits that requirements of Rule 399(2)(a) are met; this new matter was not known at the time the Court issued the Order; if the Court had been aware of Mr. Borhot’s clear position, including his intention to bring an application pursuant to section 11(b) of the Charter, this would have had a determining influence on the Court.
[18] The AGC further submits that setting aside the Order would not prejudice Mr. Borhot because ultimately the remedy suggested by the amicus (in the event the Court were to find an infringement of a Charter right) would not assist Mr. Borhot. |||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. The AGC further submits that in the circumstances, including the extent of disclosure already provided, Mr. Borhot has sufficient information to make full answer and defence.
[19] The AGC further notes that Mr. Borhot may seek remedies in the course of his trial if he is of the view that the application of section 18.1 of the CSIS Act affects his right to make full answer and defence.
[20] The AGC adds that section 18.1 of the CSIS Act will not be shielded from future constitutional review even if the Court’s Order is set aside, noting that an accused person would be made aware when documents are subject to the privilege and need not know the document’s contents to raise a constitutional challenge.
[21] In reply to the submissions of Mr. Borhot, the AGC acknowledges that the jurisprudence establishes that a motion to set aside or vary an order pursuant to Rule 399(2)(a) requires exceptionally serious and compelling circumstances, but submits that the underlying rationale for the rule is the need for finality in the outcome. In the present case, the Court’s Order does not finally determine the proceedings; the AGC’s application pursuant to section 38 of the CEA [the Section 38 Application] and Mr. Borhot’s Section 18.1 Application remains to be determined.
[22] The AGC disputes the allegation that they are a dissatisfied litigant. The AGC reiterates that new and compelling information has been revealed that is relevant to the issue of delay raised by the Court in the Order, and for which Counsel for Mr. Borhot refused to take a clear position when requested. The AGC again points to Mr. Borhot’s Section 11(b) Application, which cites the length of the proceedings in this Court (including for issues raised by this Court) as contributing to the delay of his trial and the likelihood of a further request for an adjournment as demonstrating Mr. Borhot’s clear rejection of support for the constitutional issues, all of which are new matters.
III. The Amicus’ Observations
[23] The amicus does not take a position on the AGC’s motion but provides observations in the context of his role as amicus and not an advocate.
[24] The amicus notes that there is limited jurisprudence with respect to a Judge’s discretion to raise a constitutional issue on their own motion, but that it is not appropriate for the Court to pursue a constitutional question if the accused and their counsel decline to pursue it.
[25] The amicus notes that Counsel for Mr. Borhot were apprised of the constitutional questions being considered and clearly declined to amend their own pleadings and advance the constitutional question proposed by the amicus. The amicus notes that communications from Counsel for Mr. Borhot prior to the Court’s Order were neither a clear rejection nor an endorsement of the amicus’ NCQ or of the Court raising the issue on its own motion.
[26] The amicus notes that Mr. Borhot’s Section 11(b) Application could be regarded as a change in his more neutral position as previously communicated. The amicus also notes that in the grounds advanced by Mr. Borhot for his Section 11(b) Application, he complains about the delay caused by the Court’s Order (in addition to the applications before this Court and to other events that he alleges have contributed to delay) and this could be interpreted as rejecting the Court’s initiation of the constitutional question given the delay it may cause.
IV. Mr. Borhot’s Submissions
[27] Counsel for Mr. Borhot submit that the AGC’s motion to set aside the Court’s December 20, 2023 Order should be dismissed. Counsel submit that the criteria of Rule 399(2)(a) are stringent and have not been satisfied. They submit that the AGC is simply a dissatisfied litigant seeking a different outcome.
[28] Counsel for Mr. Borhot assert that this Court provided confirmation to the trial judge in the Alberta Court of King’s Bench that adjourning Mr. Borhot’s trial until spring 2024 would align with the determination of the pending applications in this Court.
[29] Counsel for Mr. Borhot suggest that the further delay of his trial caused by the Court’s Order (which is related to the two pending applications before the Court, one of which is Mr. Borhot’s Section 18.1 Application) was not a consideration for the Court in making its Order and, therefore, cannot now be raised as a matter that would have had a determining influence on the Court’s Order.
[30] Counsel for Mr. Borhot further submit that it was clear to the AGC that trial delay had already occurred and would be exacerbated by further applications. They submit that the fact that Mr. Borhot had not yet applied for a stay of proceedings based on section 11(b) of the Charter at that time but did so only in February 2024 does not constitute “exceptionally serious or compelling grounds”
(Collins v Canada, 2011 FCA 171 at para 12). They add that this would not have a determining influence on the Court’s Order.
V. The Order is Set Aside
[31] Some response to the submissions of Counsel for Mr. Borhot is necessary for context.
[32] With respect to the submission by Counsel for Mr. Borhot that this Court confirmed that the proceedings in this Court would be concluded to permit a spring trial, the Court notes that this information was relayed by Counsel for the Court, and not “Counsel for Justice Kane”
as Counsel for Mr. Borhot assert. This information was provided to the Alberta Court of King’s Bench on September 26, 2023 in the context of responding to an inquiry regarding the status of the proceedings in this Court, merely one day after the amicus filed the NCQ. At that time, it appeared to be feasible to determine the amicus’ NCQ and the two pending applications before April 2024. The AGC subsequently filed a motion to strike the NCQ in October 2023, which was followed by the exchange of submissions and further case management conferences [CMCs]. The Court’s December 2023 Order, now the subject of the current motion, responded to the AGC’s motion to strike the NCQ.
[33] Mr. Borhot suggests that this Court did not consider and was not influenced- in the first place- by the impact on the progress of his trial, and as a result, his current Section 11(b) Application cannot be regarded as a new matter that would have a determining influence on the Court’s Order.
[34] The submission that the Court did not consider the impact on the trial – i.e., delay – in issuing the Order and that, therefore, this cannot be a new matter is based on an inaccurate premise. The Court notes that in the context of the two pending applications before the Court and the issues raised initially by the amicus, the Court engaged Counsel for Mr. Borhot, when possible, through public CMCs, a public hearing, and written directions seeking input, including about possible delay.
[35] The Court notes that Counsel for Mr. Borhot now attaches the transcript of a CMC held by the trial judge in the Alberta Court of King’s Bench on September 26, 2023, which explored dates for the adjournment of Mr. Borhot’s trial given the pending applications in this Court, including the NCQ that had just been filed by the amicus the previous day. The transcript shows that the trial judge specifically canvassed whether Counsel for Mr. Borhot would bring a Section 11(b) Application. This transcript was not previously shared with this Court. Counsel for Mr. Borhot did not refer to this in his subsequent communications in response to the Court’s inquiries in October 2023 in response to the amicus’ NCQ or in response to the Court’s December 20, 2023 Order regarding the impact on the progress of his trial.
[36] The Court notes the passage where Counsel for Mr. Borhot states, in response to how the adjournment to the next trial date should be characterised:
“The best I can do at this point is to say it’s -- it’s as a consequence of federal court, whether that’s through the appointment of amicus and their decisions, which would be I would – I would submit reflect on the court, because it’s not in our control as defence, it’s not in the Crown’s control, if that is the totality of reasons which I cannot say because the -- the email from the court does not even discuss the constitutional notice.”
[Emphasis added, errors in original.]
[37] The Court notes that the “email”
referred to is the Court’s response to an inquiry from Counsel for Mr. Borhot asking, among other questions, why this Court was not able to hold the in camera, ex parte hearing on September 15, as previously scheduled. The response was sent in the early morning of September 25, 2023 and the amicus subsequently filed his NCQ in the Court that same day and served it on all parties. Hence, the NCQ was not addressed in the Court’s response.
[38] The Court agrees with the current submission of Counsel for Mr. Borhot’s that Mr. Borhot’s right to make full answer and defence and his right to trial within a reasonable time are matters to be addressed in the context of his trial by the Alberta Court of King’s Bench, not by this Court. However, Counsel did state in response to this Court’s invitation to advise whether they had concerns about possible delay that they declined to chose between the two rights and that “the”
Court (which suggests “this”
Court) should protect both rights. This Court was not asking Counsel to make such a choice, but to signal any potential concerns regarding delay. Once again, their response was equivocal.
[39] The Court does not agree with Counsel for Mr. Borhot’s assertion that the Court was not sensitive to the issue of delay or that it did not raise this issue or that this was not a consideration at the time of the Court’s Order. The Court acknowledges that Counsel for Mr. Borhot were not present at the in camera, ex parte hearings where this was clearly raised. However, as noted, Counsel for Mr. Borhot had opportunities, including at public CMCs, in response to the amicus’ NCQ, and in response to the AGC’s motion to strike the NCQ, to more clearly convey their concern about further delay.
[40] The Court finds that Mr. Borhot’s submissions in response to the AGC’s motion to set aside the Court’s Order do not support the assumption made by the Court in making the Order. Counsel for Mr. Borhot submit that the Court should dismiss the AGC’s current motion, from which the Court might assume that they now want the Court to determine the issues set out in that Order, regardless of whether the determination – which would require the receipt of submissions from the amicus and AGC and would likely require extensive affidavit evidence – would have an impact on the trial proceeding as scheduled. However, they do not say this, but rather cite the requirements of Rule 399(2)(a). The Court will not rely on its own assumption yet again. Counsel for Mr. Borhot also focus on the jurisprudence informing the application of Rule 399(2) and suggest that the AGC’s motion is some strategy to thwart the determination of privilege claims, where to do so would cause delay.
[41] Counsel for Mr. Borhot stated, (as noted in the transcript of the September 26, 2023 CMC recently provided to the Court) that the proceedings in this Court – which include the two applications made by Mr. Borhot pursuant to Section 18.1 of the CSIS Act, one of which remains to be determined – have taken some control away from their defence.
[42] The amicus has acted in the interests of justice in raising issues while repeatedly noting that the control of the defence should not be interfered with. The AGC has raised the same concerns. This is one of the reasons why the suggestion was made in October 2023 that Counsel for Mr. Borhot could consider adopting the constitutional question as his own and amending his own pleadings; a suggestion which he declined to pursue.
[43] Mr. Borhot’s submissions in response to the AGC’s current motion asks the Court to dismiss the motion but do not take a position that clarifies that Mr. Borhot supports the Court’s exploration of the issues or that the Court’s assumption, which grounded the Court’s Order, was correct. Mr. Borhot’s subsequent communications and actions support the conclusion that he does not.
[44] Counsel for Mr. Borhot now seek a stay of proceedings in the Alberta Court of King’s Bench due to delay, part of which they attribute to the proceedings in this Court that includes Mr. Borhot’s own Section 18.1 Application in this Court, the AGC’s Section 38 Application, which the AGC was bound by law to pursue, and the amicus’ and Court’s own initiative to canvass issues that could be in his interest.
[45] The Court has made it abundantly clear, in both the determination of the first Section 18.1 Application and in the December 20, 2023 Order, that the innocence at stake exception in subsection 18.1(4) of the CSIS Act has not been established. The two pending applications (Mr. Borhot’s Section 18.1 Application and the AGC’s Section 38 Application) can be determined on the basis of the record before the Court and the submissions made. However, to do so will render the Court functus, unless further documents are made subject to a Section 38 CEA application or a further Section 18.1 CSIS Act application is filed.
[46] As the AGC notes, even if the Court were to receive further submissions and address the issues raised in the December 20, 2023 Order and ultimately find that Section 18.1 impairs, to some extent, the right to make full answer and defence in the particular circumstances, the appropriate remedy may not meet any of Mr. Borhot’s expectations regarding additional disclosure or production beyond what has already been already provided.
[47] The Court has considered the jurisprudence and acknowledges the necessity in preserving the certainty of orders and judgments and the integrity of the process, and that relying on Rule 399(2)(a) to set aside or vary an Order is an extraordinary remedy.
[48] The present circumstances are extraordinary on their own. The underlying rationale of the need for finality in orders and judgments is not at issue to the same extent given that the Court will not be functus, as two applications remain to be determined and further applications remain possible.
[49] Although Counsel for Mr. Borhot ask the Court to dismiss the AGC’s motion – which would result in the Court receiving further submissions and affidavit evidence and further considering the issues, including those raised in the first Section 18.1 Order – they do not say they want this to be pursued and they have had many opportunities to do so.
[50] The Court, therefore, finds that a new matter has arisen since the Court rendered its Order – namely, Mr. Borhot’s Section 11 (b) Application filed in the Court of King’s Bench and the grounds cited in support of that application. The grounds for the Application include, among other things, the alleged delay in Mr. Borhot’s trial caused by the determination of applications in this Court, in particular the Court’s December 20, 2023 Order (which is the only new outstanding matter since Mr. Borhot’s September 2023 Section 18.1 Application and the AGC’s identification of additional documents subject to the Section 38 CEA Application). The Court also regards the views expressed by Counsel for Mr. Borhot to the Alberta Court of King’s Bench regarding delay, of which this Court was previously not aware, as a new matter. The assumption made by this Court that Mr. Borhot would support the Court’s motion to raise the constitutional questions initially raised by the amicus has now been shown to be an incorrect assumption. Counsel for Mr. Borhot’s equivocal or neutral position on the constitutional issues as communicated to this Court has changed. The Court views the recent events and previously unknown statements as conveying a lack of support for the constitutional issues to be pursued in this Court. This new matter would clearly have had a determining influence on the Court’s Order.
[51] As noted by the AGC, Mr. Borhot may yet pursue applications in the context of his trial in the event that he believes his rights have been infringed. Counsel for Mr. Borhot will recall the discussion in October 2023 where this option was canvassed, but not favoured at that time.
ORDER in DES 14-22
THIS COURT ORDERS that:
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The AGC’s motion to set aside or vary the Court’s Order dated December 20, 2023, to the extent that the Order requested submissions on the issues set out at paragraphs 42- 44 of that Order, is granted.
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The Court requests that the AGC and amicus identify any necessary redactions to this Confidential Order and Reasons no later than April 3, 2024.
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There is no Order for Costs.
"Catherine M. Kane"
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